The Lame Duck Congress Should Not Sunset the 2001 AUMF

I am troubled that the two proposals for a new AUMF posted by my Lawfare colleagues (Jack, Bobby, Ben, and Matt) and by a group at Just Security -- while constructive -- would both repeal the 2001 AUMF.   The Lawfare proposal would repeal it immediately and fold it into a new AUMF that would also cover ISIL and would sunset that new combined AUMF within 36 months of enactment. The Just Security proposal would repeal the 2001 AUMF within 18 months. In my view, both proposals are wrong to try to address the 2001 AUMF at this time, and in particular to sunset congressional authorization for use of force against al Qaida.   The 113^th Congress should address the more urgent need for a new legislative authorization for use of force against ISIL during the lame duck session, and the 2001 AUMF should be reviewed and revised after the new 114^th Congress is seated. To be clear, I have long supported revising and limiting the 2001 AUMF. I was one of the earliest voices calling for its revision in this op-ed in the Washington Post in November 2010, where I argued that “Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation.” I suggested that the 2001 AUMF be refined to address emerging threats and to place limitations on targeting of Americans and on indefinite detention. But it is premature to address the 2001 AUMF or to sunset it during the lame duck Congress.  Here's why:

1. The lame duck Congress will only be in session for a few weeks. It will be hard enough to reach agreement on the parameters of a new ISIL-specific AUMF, without adding in the significant complexity of revising the 2001 AUMF.

2. It is more appropriate to let the new 114th Congress -- with its many new members -- consider and vote on the broader and much more complicated issue of revising (and potentially sun-setting) the 2001 AUMF, which authorizes the use of force against groups associated with al Qaida in many countries and provides the legal basis for detention and drone strikes, among other actions. (I would also note that my Lawfare colleagues’ proposal to simply fold the 2001 AUMF into a new ISIL-specific AUMF would not address the need several of them had previously identified in their Hoover paper to revise the 2001 AUMF to address other emerging terrorist groups. In my view, it would be better for Congress to address that issue in 2015, rather than delay for three years.)

3. The Just Security proposal would sunset the 2001 AUMF (and potentially the new ISIL-specific AUMF) 18 months after enactment. As

Ben has noted

, even if the legislation did not pass until early 2015, the sunset would be smack in the middle of a Presidential election year. It would be beyond foolhardy to expect Congress to focus on reviewing the AUMFs in a calm and non-partisan way in the middle of a Presidential election.

4. I am also troubled about the proposal of my Lawfare colleagues to sunset a combined new AUMF after 36 months. Although three years is a much longer period and would not expire in an election year, I remain concerned about sun-setting congressional authorization to use force to defend the United States against further attacks by al Qaida and its associates. The conflict with al Qaida and associated groups shows no sign of ending within three years.   Either an 18-month or 36-month sunset -- like President Obama’s announcement that the U.S. would withdraw from Afghanistan -- would send a signal to Al Qaida that Congress lacks the resolve to use force over the longer term.

5. For the foregoing reasons, I would support rapid enactment of an ISIL-specific AUMF during the lame duck session and a sense of the Congress resolution that the 2001 AUMF should be reviewed and refined in 2015, leading to a revision that would authorize use of force against Al Qaida and associated groups, and potentially other terrorist groups that pose an imminent threat to the United States, both within certain defined limits.